Hungary’s Anti-European Immigration Laws

Hungarian police at the Keleti Railway Station in Budapest, September 2015.

4.11.2015

Since Viktor Orbán came to power in 2010, Hungary has regularly violated the principles set forth in Article 2 of the Treaty of the European Union. This states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” The latest violation has been the Hungarian government’s shameful behavior in the ongoing refugee crisis. Thousands of people have been left to languish in fields and on the streets, others have been herded into squalid detention camps. Water cannons and teargas have been fired at refugees gathered at the razor-wire fence erected on the border with Serbia and Croatia, a fellow EU Member State. Viktor Orbán, who has styled himself as the defender of Europe’s “Christian civilization” against an Islamic invasion, has encouraged other eastern European governments to follow his example in violating EU norms.

Orbán’s alleged defense of Christianity from the “Muslim hordes” is a central point of reference in his rightwing populism. In the early 1990s, Fidesz was a liberal party with a militantly anti-clerical position. After the disappearance in the mid-90s of the Hungarian Democratic Forum, the largest party on the right, Fidesz realized that it stood a better chance as a conservative party, and adopted a positive stance towards religion. However, Fidesz never understood religion as a significant part of its identity. Even after it joined the center-right grouping in the European parliament, the European People’s Party (EPP), religion played a solely instrumental role in its political strategy.[1] Fidesz makes eclectic use of religious symbols, combining references to Christianity with pagan traditions. Paganism is interpreted within the framework of ethno-nationalism, which serves as a type of surrogate religion. In this respect, Fidesz follows the authoritarian traditions of the interwar Horthy regime, in which the national religion (nemzetvallás) played a crucial role. The fact that all the illiberal regimes Orbán claims to admire, from Singapore through China and Turkey to Russia, are either non-Christian or Orthodox, also raises doubts about Orbán’s seriousness about Christianity.

The new wave of hostility towards refugees is a direct consequence of the decline of Fidesz’s popularity. The latest defeat, at a by-election in Spring 2015, to the neo-Nazi party Jobbik signaled that the most serious political opponent to Fidesz in the 2018 general election will come from the right. This is why Fidesz increasingly carries out the Jobbik agenda, beginning in 2010 with numerous nationalist, anti-Roma, and anti-Semitic policies. Unfortunately, there are voters in Hungary who endorse these policies. In May this year, days after hundreds of refugees drowned in the Mediterranean, Orbán announced that Europe did not need immigrants, that the European Union ought to be sealed off against intruders, and that member states should be free to deal with unwanted immigrants as they see fit. Needless to say, Jobbik welcomed Orbán’s statement.

What makes this anti-immigrant sentiment odd is that, in 2014, only 1.4% of the population were foreign nationals and only 360 political refugees received asylum that year. Hungary has always been a transit point for would-be immigrants, whose final destination isn’t Hungary but countries in Western Europe. Indeed, since Fidesz’s victory in 2010, at least half a million Hungarians have emigrated to Western Europe, mostly to the UK, Germany and Austria, where they work as “economic immigrants” (as Orbán called migrants from Kosovo, Syria or Iraq).

In order to legitimize its policy against immigrants, in June the government held a so-called “national consultation”, similar to the one held in 2011 shortly before the enactment of the new Fundamental Law, the results of which have never been made public. The government sent out eight million questionnaires to all those of voting age, expecting that a million would be filed and returned. There was no legal requirement to publicize the responses, which were handled exclusively by government officials. In order to give an idea of the demagogy behind the “consultation”, it is worth citing some of the questions without comment: “How important is the spread of terrorism as far as your own life is concerned? Do you agree that mistaken immigration policies contribute to the spread of terrorism? Do you agree that economic immigrants endanger the jobs and livelihoods of the Hungarian people? In your opinion, have Brussels’s policies on immigration and terrorism failed? Would you support a new regulation that allowed the government to place immigrants who entered the country illegally into internment camps? Do you agree with the government that instead of allocating funds to immigration, we should be supporting Hungarian families and children yet to be born?”

After this psychological preparation, the government tried to convince the public that the only way to protect the Hungarian border, and simultaneously the Schengen border, was to build a 175-km long razor-wire fence along the entire border with Serbia, and later along the 377-km long border with Croatia. In July, the Parliament amended the asylum law and drew up a “National List of Safe Countries”, which included Serbia (contrary to the position of the European Court of Human Rights and the Hungarian Supreme Court). These changes, which came into force on August 1st, accelerated asylum proceedings, establishing a one-instance judicial review with unreasonably short deadlines. This resulted in the quasi-automatic rejection of over 99% of asylum claims (since 99% of asylum-seekers enter Hungary from Serbia).

Another law came into effect on September 15 – by which time Hungary had registered over 170,000 asylum claims – that permitted the construction of so-called transit zones where immigration and asylum procedures can be conducted. After the closure of the border to Serbia, two transit zones went into operation: one in Röszke, another in Tompa. The Röszke zone is a compound of approximately 50 containers, which are integrated into the border fence. The border procedure is a specific type of admissibility procedure that can be initiated only if the applicant submits the asylum claim in the transit zone. Inadmissibility decisions are delivered either by judges appointed for a fixed term, or by court clerks in under an hour. Rejected asylum seekers are expelled immediately and banned on re-entering for one or two years.

The law also amended the criminal code, introducing new offences including illegal entry into the country and the damage of state property – such as a fence. These criminal acts are punishable by up to three years imprisonment, and in aggravated cases up to 20 years to life. According to Article 31 of the 1951 Geneva Convention concerning the Status of Refugees, criminal prosecution of an asylum seeker for illegal entry cannot take place before his or her claim has been adjudicated. This means that the amended criminal code violates the Geneva Convention.

The same amendments also entitle the government to declare a state of emergency if more than 500 migrants seek asylum per day for a month, if 2000 migrants reside in transit camps for a week, or if migrants riot anywhere in the country. The emergency entitles the government to send soldiers, fully armed, to guard the borders; they can use dogs, rubber bullets and teargas, which normally only the police are authorized to do. An amendment to the police law allows the police to enter any house in Hungary without a warrant, if they are searching for illegal immigrants.

The fence and the new laws not only violate Hungary’s Fundamental Law of 2011, enacted by Fidesz without the consent of any of the other parliamentary parties, but also international treaties, especially Article 31 of the Geneva Convention of 1951, and at least three different EU laws. The 2006 EU Law on the Schengen borders requires that “[b]order checks […] be carried out in such a way as to fully respect human dignity”; the 2013 EU Asylum Directive requires that “standards for the reception of applicants […] suffice to ensure them a dignified standard of living”; and under the EU’s Dublin III Rules, “Member States shall not hold a person in detention for the sole reason that he or she is an applicant [for asylum].” These violations of EU law must be taken seriously, even though Orbán’s behavior in the refugee crises has increased his popularity in Hungary and in other anti-immigration circles in Europe, particularly in Eastern Europe. A large portion of the blame for this must fall on Europe’s failure to find a joint solution to the crisis. Despite Angela Merkel’s efforts, Germany cannot do it alone; everyone else is meanwhile trying to outsource the problem, as Orbán did by building fences (and before that, by transferring the refugees to Austria.)

The behavior of the Hungarian government and its partial support by the other Eastern European countries teaches us that membership of the European Union is no guarantee that liberal democratic regimes operate in all member states. If Hungarians ultimately opt for an illiberal democracy, as Prime Minister Viktor Orbán publicly advocated over a year ago, they must accept certain consequences. These include parting from the European Union and the wider community of liberal democracies. This is a most unlikely choice, since the sustainability of the Hungarian economy depends on badly needed EU resources. The Union therefore needs to develop and to apply effective tools to force member states to comply with European values and principles.

Gábor Halmai is Professor of Law at Eötvös Loránd University, Budapest and EURIAS Senior Visiting Fellow at the IWM.

[1] According to the research conducted by Political Capital Institute, Budapest in 2012, only 22% of Fidesz voters are practicing Christians; the same percentage consider themselves to be explicitly irreligious.

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